Feasibility Study of Proof of Crime with Oath Taking from the Perspective of the Jurisprudence of Shia and Hanafi with a Comparative Approach to the Law of Iran and Afghanistan

The reason is something that both sides adduce to prove their statement or defend their statement. In general, items proving penal case considering degree, validity, and rank are: the judge’s knowledge, confession, witness, oath taking and Qasamah (oaths of 50 people). Accordingly, oath is considered a valid proof in cases where there are no stronger proofs available. From the perspective of Positivist Realm, there is no oath taking in Hadd and Ta‘zir cases according to Shia clerics who take into account Prophet Mohammad’s (PBUH) tradition: (البینه علی المدعی والیمین علی من انکر) “Bringing evidence is the accuser’s task and taking an oath is the defendant’s”, and (لایمین فی حد) “Taking oath in crimes resulting in Hadd is unacceptable”. Considering that Shia provides the basis for the Iranian Laws, according to the Iranian Penal Law number 208, Hadd and Ta‘zir cannot be proved or disproved by taking an oath; however, things like Qisas (retaliation), Diyah (definite compensation money), Arsh (indefinite compensation money), damage caused by the crime could be proved by oath taking. In Hanafi clerics’ view, Dar’ rule and the previously mentioned Haddiths, prevents the acceptance of oath in Hadd but oath taking in absence of witnesses for the accuser, in cases like murder and theft and so on is applicable because it pertains to Haq al-Nas (the people’s rights). In Qisas (retaliation) of the body parts, since Hanafi clerics equate body parts with properties like monetary belonging, oath taking is applicable. All that has been said about Hanafi views is practiced in the law of Afghanistan as according to second penal law of Afghanistan, except Ta‘zir, everything is in keeping with Hanafi jurisprudence. Ta‘zir, likewise, on the ground that is seen as a definite right, can be disproved with an oath taking. Above all, Qasamah, as a group of oaths from the side of the accuser and his/ her relatives in cases where there is a lack of evidence, is put forth to prove murder or charges or disprove claims made by the accuser, and are accepted as valid proof in Iranian and Afghan laws with the distinction that in Hanafi jurisprudence, is used solely in acquittal, and not in accusation cases.